In Simon v. Desporte, 150 Miss. 673, 116 So. 534 (1928), a case cited by the Stuckeys, Sophie Desporte sued Joe Simon in the Circuit Court of Harrison County for breach of contract due to Simon's failure to execute and deliver a deed to Desporte subsequent to her payment to Simon of the stated consideration under the deed.Summary of this case from Stuckey v. Provident Bank
April 9, 1928.
1. EVIDENCE. Excluding complaint, signed and sworn to by plaintiff in another case, where plaintiff testified she had not read complaint, held error.
Where plaintiff had previously sued defendant and another on an original bill which stated facts almost in accord with evidence introduced by defendant in instant suit, excluding such bill of complaint signed and sworn to by plaintiff, where plaintiff testified that she signed and swore to bill of complaint without reading it, held error, since bill of complaint should have gone to jury with plaintiff's explanation thereof.
2. TRIAL. In suit against vendor, refusing to execute deed, to recover purchase money, instruction permitting recovery on theory defendant was plaintiff's agent held erroneous.
Where declaration alleged in effect that plaintiff purchased property from defendant and made partial payment thereon but that defendant refused to execute deed and prayed for recovery of money paid, instruction permitting recovery on theory defendant, acting as agent for plaintiff and others, bid in property at sale thereof, received from plaintiff her portion of purchase money, and paid it over to auctioneer without receiving deed thereto and without authority from plaintiff to do so, resulting in loss to plaintiff of money paid, held erroneous.
APPEAL from circuit court of Harrison county; HON.W.A. WHITE, Judge.
The third instruction referred to in the opinion is as follows:
Instruction No. 3 for plaintiff. The court instructs the jury for the plaintiff that if you believe from the evidence in this case that Joe Simon, Carl Theobald, and Mrs. Sophie Desporte, the plaintiff, agreed to buy this Bailey property as joint adventurers, and that each one was to have a one-fourth interest therein, and you further believe from the evidence that Joe Simon was paid over the money testified to, by the plaintiff, as part of the payment due by her to said Joe Simon, and that said Joe Simon was handling the transaction for the benefit of all parties, and that said Joe Simon paid over to Harry Fitzpatrick the money testified to without having received from said Harry Fitzpatrick a deed to said property, and paid said money over without authority from the plaintiff, Mrs. Desporte, then you will find a verdict for the plaintiff.
Rushing Guice, W.L. Guice and Jno. L. Heiss, for appellant.
This being a case where the appellee was seeking a recovery on the theory that the appellant had received money from her which he was in duty bound to return to her on account of the alleged failure of the consideration for which the money was given, naturally will be construed by the court in accordance with the law governing money received. 41 Corpus Juris 28, being sec. 2 of "Money Received."
There is no suggestion in the pleading and the court could not consider the question of any negligence or tort on the part of Simon, but under the law above stated, which runs through every phase of the action of money received, the appellee could not have recovered unless the money was either possessed by Simon or had been used by him for purposes different from that purpose for which the money was given. In the trial of this cause this issue was clearly presented, the appellee seeking to prove that Simon had money which he had obtained by means of illegal or non-enforceable contract made between he and the plaintiff. Under the defense set out in the general issue the defendant was endeavoring to prove that this money was voluntarily paid him for certain purposes and was by him used for this purpose and being no longer in his possession and not having been misused by him, that there was no duty in equity or good conscience for him to return it. If this was true, then clearly it was the duty of the court to have submitted the issue generally between the parties by giving the instruction which placed this issue before the jury. We therefore submit to the court that the instruction No. 3 given for the plaintiff destroyed the right of the appellant, Simon, to this defense because the instruction contained the following words: "and paid said money over without authority from the plaintiff, Mrs. Desporte." This limited the defense of Simon and took away from him the very basis of the fact on which his defense rested. The same error arises from the refusal to give instruction No. 3 for the defendant, which instruction is as follows:
"The court instructs the jury for the defendant, that if the jury believe from the evidence, that the plaintiff Mrs. Desporte, Carl Theobald and Joe Simon agreed to purchase the property described in the declaration, at an auction sale held by H.W. Fitzpatrick, with the agreement that each of the parties together with Harry Fitzpatrick was to have a one-quarter interest in said property, the sale to be made to Joe Simon, and that in carrying out said agreement the plaintiff paid to Joe Simon certain monies, which were by the said Simon paid to the said auctioneers, then the jury shall find for the defendant." We call to the court's attention under the subject "Evidence" in 22 Corpus Juris, section 374, being found on page 333 of this volume: "It is well established that an admission contained in a pleading in one action may be received in evidence against the pleader on the trial of another action, the rule in this respect being the same whether the actions are both at law, both in equity, or one in equity and the other at law. It is not essential that both actions should be in the same court, but admissions made in the pleadings filed in a federal are competent in a state court, and vice versa." Crump v. Gerock, 40 Miss. 765; Vardaman v. Byrne, 7 H. 365; Ruth v. Bank, 12 S. M. 161; Southern Ry. Co. v. Elder, 110 Miss. 461.
Leathers Sykes and Mize, Mize Thompson, for appellee.
The instant case is nothing in the world but the same old story of where one party purchases an interest in real estate from another party, pays money for that interest, and receives neither deed nor a refund of the money, thereby necessitating that the courts be resorted to. It is not an action for money had and received, as is so adroitly now contended by opposing counsel, and it was not defended in the court below on this theory.
For losses caused by the negligence of the co-adventurer, it seems that he alone is liable. 15 R.C.L. 506, sec. 8, citing Note 17 Ann. Cas. 10256; Note Ann. Cas. 1916A, 1214, which cites: R. Lathrop, 216 Fed. 102, 132 C.C.A. 346; Knudson v. George, 157 Wis. 520, 147 N.W. 1003. If he was a trustee, he is still liable for negligence. See 3 L.R.A. (N.S.) 418; 3 Pomeroy on Equity, sec. 1079. If he was an agent, he is liable for negligence. The principles in the matter of agency are generally well understood. If he who undertakes the business of another is capable if managing it, and neglects to do so with due care, he is answerable. If he is not capable, he is still answerable, for he ought not to have engaged to do that which he could not perform. Drwnford v. Patterson (La.), 12 Am. Dec. 514. To the same effect: 21 R.C.L. 824, sec. 9. Elam v. Insurance Co. (N.C.), 18 A.L.R. 1210; Ellis v. Mercantile Co., 103 Miss. 560; Wolf v. Simmons, 75 Miss. 539; Boyd v. Applewhite, 84 So. 23.
We desire to cite the following additional authorities on behalf of the appellee, supporting the proposition that a joint adventure is governed by the same law as a partnership: 15 R.C.L. 500. Annotated cases, 1916A 1910 and note. One partner is liable to a co-partner for his individual negligence. Carlin v. Donegan, 15 Kan. 495; Bohrer v. Drake, 33 Minn. 408; 30 Cyc. 452, 453; 20 R.C.L. 931, secs. 148-149; 20 R.C.L. 878, sec. 91; Appeal of Moore, 19 A. 753; Parsons on Part. (4 Ed.), sec. 151.
Argued orally by Wm. Guice, for appellant, and S.C. Mize, for appellee.
The appellee recovered a judgment in the court below against the appellant for money had and received. The declaration set out in detail the facts on which the cause of action is alleged to have arisen. These facts, as therein set forth, are, in substance: That in November, 1905, a tract of land known as the Bailey property was advertised to be sold by Harry W. Fitzpatrick Co. at public auction, payments therefor to be made one-third in cash and the balance in one and two years. The property was bid in at the sale by the appellant, and thereafter he called the appellee over the telephone and told that he "had bid in said Bailey property for thirty-five thousand dollars, on terms of one-third cash, and the balance payable in one, two, and three years; and that Carl Theobald was going to take a one-fourth interest in it, and he, the defendant, was going to take a one-fourth interest in it, and that Harry W. Fitzpatrick was going to take a one-fourth interest in it; and that plaintiff could have the other one-fourth interest in said property if she desired to go into it." This offer was accepted by the appellee, and thereafter she paid to the appellant one thousand dollars "as her part of the earnest money required in the said transaction." Afterwards the appellee was advised by the appellant that an abstract title to the property had been completed, and "that the balance of her part of the cash payment due was two thousand one hundred eighty-four dollars and thirty-seven cents." Whereupon she gave him a check therefor, which he indorsed, and which was subsequently cashed. "It thereupon became and was the duty of said defendant, Joe Simon, to execute to her a deed to a one-fourth interest in said property, but that he did not do so, and plaintiff thereupon made demand upon him to execute deed to her to a one-fourth interest in said property known as the Bailey property in Ocean Springs, Miss., but defendant declined and refused to execute such deed to her and has not to this date conveyed to her any interest in said property." The appellee's contract with the appellant was not in writing, so that she could not enforce its specific performance, and therefore sues to recover the money paid him thereunder.
The appellant pleaded the general issue, and gave notice thereunder that he would introduce evidence to the effect that before the sale of the Bailey property an agreement was entered into by the appellant, Theobald, Harry W. Fitzpatrick, and the appellee, under which the appellant was to bid in the Bailey property for them, each to take a one-fourth interest therein, which he did, and the money paid by the appellee to the appellant was by him turned over to Harry W. Fitzpatrick, the auctioneer, under instructions from the appellee so to do, to cover her portion of the cash payment to be made on the land; that no deed to the land by the owner thereof had been made to the appellant or his associates, although he has used his utmost endeavor to procure the same.
The appellee's evidence supports her declaration, and the evidence for the appellant is in substantial accord with his notice under the general issue.
Prior to the institution of this suit in the court below, the appellee sued the appellant and Fitzpatrick, in the chancery court, on an original bill, which stated the facts on which her cause of action arises more nearly in accord with the evidence here introduced by the appellant than with that here introduced by the appellee. This bill was signed and sworn to by the appellee. The appellant introduced this bill of complaint in evidence. Afterwards the appellee sought to introduce the decree rendered by the chancery court thereon, but on objection by the appellant was not permitted so to do. Whereupon the appellee moved to exclude the bill of complaint introduced by the appellant. This motion was sustained. The appellee had testified that she signed and swore to the bill of complaint without reading it. This bill of complaint should not have been excluded, but should have gone to the jury along with the appellee's explanation thereof; for admissions in a pleading sworn to by the party in whose behalf it was filed are admissible against him in another action. 22 C.J. 335; 2 Wig. on Evidence (2 Ed.), section 1065; Delaware County v. Diebold Safe, etc., 133 U.S. 473, 10 S.Ct. 399, 33 L.Ed. 674. Compare Crump v. Gerock, 40 Miss. 765; Co-operative Life Association v. Leflore, 53 Miss. 1; Meyer v. Blakemore, 54 Miss. 570.
The appellee's third instruction (which the reporter will set out in full) should not have been given. The declaration alleges that the appellee purchased the Bailey property from Joe Simon, and made him a partial payment thereon, but that he has refused to execute to her a deed thereto, and prays for a judgment against him for the money so paid him. In other words, the suit is by a vendee against a vendor who refuses to execute a deed to the property agreed to be conveyed for the recovery of the purchase money paid. The appellee's instruction No. 3 permits a recovery on an entirely different theory, to-wit, that the appellant, acting as the agent for the appellee and others, bid in the Bailey property at the sale thereof, received from the appellee her portion of the purchase money due thereon, and paid it over to Harry W. Fitzpatrick, the auctioneer, with out receiving a deed thereto from him to the appellee, and without authority from the appellee so to do, resulting in the loss to the appellee of the money so received from her by him. In other words, the recovery permitted by the instruction is for the negligence of an agent in discharging a duty due by him to his principal.
Reversed and remanded.